1969 P Cr (PLP)

The case was thereafter transferred to the present Magis trate for disposal. During the enquiry the parties examined witnesses and produced documents in support of their respective claims. Six witnesses for the first party and six for the other side were examined in the case. The learned Magistrate on appraisal of the evidence and materials on record, found the first‑party in possession of the disputed land. In deciding the question of possession, the learned Magistrate disbelieved the evidence adduced on behalf of the second‑party. Second‑party challenged the propriety of the above order before the Sessions. Judge, Mymensingh with a prayer to refer the matter to the High Court under section 438, Cr. P. C. The learned Additional Sessions Judge, 4th Court, Mymensingh rejected the prayer by an order dated 30‑4‑

68. The second‑party‑petitioner there after moved this Court and obtained the present Rule. The learned Magistrate has discussed the evidence adduced, by the parties in his judgment ire extenso. The findings of facts recorded therein cannot be called unreasonable. The learned Advocate appearing for the petitioner has raised only one point and his grievance is that in the final order the Magistrate did not record any finding that there was a danger of breach of the peace about the land and in the absence of such finding the order was beyond his jurisdiction and, as such bad in law. I am unable to readily accept this contention. The last paragraph of the judgment of the lower Court runs as follows :‑ "Thus discussing the evidence on record, I find that Syedur Rahman the 1st‑party was in possession of the P. L. and as such order that he is entitled to the possession of the P. L. until evicted therefrom in due course of law and forbid all disturbances of such possession until such eviction. (Sd.) A. ALI, 11‑4‑67 Magistrate, 1st Class." The last line of the above‑quoted order indicates that the disturbance was still continuing and that is why all disturbance of such possession was forbidden by the learned. Magistrate. It cannot, therefore, be argued that there was nothing in the judgment to point out the danger of breach of the peace. Section 145(1), Cr. P. C. empowers a Magistrate, Ist Class to draw up a proceeding on satisfaction from the police report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereto within the local limits of his jurisdiction. The elements necessary for the foundation of jurisdiction under sec tion 145, Cr. P. C. are that the Magistrate must be satisfied :‑(a) that a dispute likely to cause a breach of the peace exists, (b) that the dispute refers to land or water or the boundaries thereof and (c) that such land or water is situated within the limits of his territorial jurisdiction. If these elements exist they are sufficient to vest the Magistrate with jurisdiction to make the preliminary order in the mode prescribed therein. In the instant case, all the elements having existed, the learned Magistrate had jurisdiction to draw up the proceeding and he drew the proceeding on satisfaction that there was serious apprehension of breach of the peace between the parties over possession of the land in question. The jurisdiction once validly acquired by the Court does not cease until and unless the proceeding drawn under sub‑section (1) is cancelled under subsection (5) or the subject‑matter of the proceeding is finally disposed of under subsection (6) of the said section declaring a party to be entitled to possession thereof. Subsection (5) of section 145, Cr. P. C. provides a follows:‑ "(5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed in such case the Magistrate shall cancel his said order and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub section (1) shall be final." It is apparent from the subsection that where any party to the dispute or any other person interested has appeared and denied that no such dispute exists or ever existed and if the Magistrate concerned is satisfied from the surrounding facts that no such dispute exists or has existed then he is not only entitled but is also bound to cancel the preliminary order. If from the representations of the parties or any other source the Magistrate once comes to the conclusion that the dispute which then existed has subsequently subsided and there is no more any dispute likely to cause a breach of the peace, he has power coupled with duty to cancel the preliminary order and drop the proceeding forthwith. This subsection thus indicates that in a proceeding under section 145, Cr. P. C. there should be a continued danger of a breach of peace till the time the final order is made. As soon as the apprehension of breach of peace ceases, the jurisdiction of the Magistrate to deal with the matter also ceases. The Magistrate shall exercise his jurisdic tion in a proceeding under section 145, Cr. P. C. so long the apprehension of breach of peace continues. Whether there is still a danger of breach of the peace about the proceeding land is a matter of facts. If there is nothing before the Magistrate to indicate that the apprehension of breach of the peace has already subsided it shall be presumed that the said apprehension of breach of peace is still continuing and the Magistrate concerned has jurisdiction to deal with the matter. In the instant case, prior to the final order, there was no material before the Magistrate to infer that the apprehension of breach of peace subsided at any p stage of the proceeding. No such application was filed and no objection was raised before the Magistrate by either party at any stage to show that the dispute likely to cause breach of peace had subsided. In the absence of any allegation or any material to the contrary it shall be presumed that the breach of peace which was the sine qua non for drawing up the preliminary order continued till the final disposal of the proceeding. In this view of the matter the non‑recording of any finding as to the apprehension of breach of peace in the final order is not very material and that cannot hake the final order without jurisdiction if such a finding is recorded in the final order, it is well and good and if not recorded it is not fatal. The mere omission to record in the final order such a finding which was recorded in the initial order toes no necessarily make that order without jurisdiction. The most that can be said is that the failure to do so a mere technical defect amounting to an irregularity ant not an illegality vitiating the entire proceeding and such irregu larity is curable under section 537 of the Code of Criminal Procedure. In this connection, the cases reported in PL D 1961 S C 426 ; P L D 1965 Dacca 410 and A I R 1939 Lah. 233 may be referred to. The case of Malik Manzoor Elahi v. Dala Bishambar Das (P L D 1964 S C 137), if I am permitted to say so, does not lay down that the absence of any finding in the final order on the element of apprehension of bleach of peace, will make the order without jurisdiction. In that case the Supreme Court considering the entire provisions of section 145, Cr. P. C. observed as follows :‑ "It further seems to us that the provisions of section 145, read as a whole clearly indicate that there should be a continuing danger of a breach of peace till the time the final order is made. The use of the word "exits" in the present tense in subsection (5) connotes that the dispute must continue to exist even at the time when the objection is raised. The main purpose of this section being the maintenance of public peace and the prevention of breaches thereof it would follow that whether there is no danger at any point of time of any further breach of public peace taking place, then manifestly the invocation of the summary procedure provided this section is no longer called for and should be put an end to." The relevant portion of the judgment quoted above does not indicate that in the absence of any such fading the final order will be bad merely for that reason above. This case does not, therefore, help the petitioner in any way. Similarly the case reported in (1966) 16 P L R Dacca 449 does not also support the contention of petitioner in this view of the matter, the point raised by the learned Advocate has no force. For the reasons stated above, this revisional application must fail. The Rule is thus discharged. Rule discharged.